Secondary legislation comprises regulations, directives and decisions, broadly equivalent to Acts of Parliament but at EU rather than national level.
Decisions of the European Court of Justice have also aggregated to form a recognised law type.
Question 2:
In your own words, identify the disadvantages of law making in Parliament. Within your answer you should cover both primary and delegated legislation.
While there are valid points to be made as to the inadequacies of Parliament in terms of time and expense inefficiencies, the main thrust of arguments in this regard relate to Parliamentary law making and more so delegated law making not being properly democractic.
Given that no government in seventy-five years has enjoyed a majority and New Labour’s 1997 ‘landslide’ electoral mandate only afforded 43.2% of voter support, Parliament’s adherence to the first-past-the-post system indeed opens it to criticism that its law making authority is undermined by its failure to live up to democratic ideals, a kind of constitutional hypocrisy.
Parliamentary law making processes often and increasingly avoid the need for debate and majority voting. The use by government of Orders in Council to rubber stamp the introduction of EU law can be viewed as Parliament’s failure to retain control of law making. Similarly, witness the recent (ab)use of the Anti-Terrorism Act 2001 to freeze Icelandic bank deposits.
As a consequence of the Solicitors Act 1974 and Medical Act 1983 the answer to Pliny’s ‘quis custodiet ipsos custodes’ is ‘themselves’!
Against this background of democractic defecit, Parliament is broadsided with a variety of complaints as to its efficiency and abilities.
Muylle (in the Statute Law Review, 24 (169) (2003)) considers that MP’s ‘often lack the technical expertise to draft legislation’ and goes on to critique Parliamentary lawmaking in terms of ‘quality of the end product’ concluding that Parliament’s offering regularly fails tests of “enforceability, consistency, comprehensibility, transparency, clarity, plainness and accessibility.”
Lord Thring’s observation that “a bill is made to pass as razors are made to sell” speaks to the origination of legislation lying with the executive such that Parliament’s role can be thwarted by the way in which bills are framed.
How often is it the cry of lobby groups that law is framed without adequate consultation? Relative to delegated legislation, the intended Parliamentary protection of prescribed consultation is sometimes ridden over roughshod by the technicians, self-styled ‘experts’ and bureaucrats, ever keen to regulate, all too often government controlees and all unelected. There are a plethora of cases where the intended boundaries of delegated legislation have been wilfully unobserved, eg. leaving the Mushroom Growers’ Association in the dark (Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280).
Parliament additionally stands accused of outdated and overly complex procedures (numerous ‘readings’ and stages all of which have to be repeated in the unelected House of Lords) and erosion of ‘conscience’ in scrutinising legislation through party whipping and the patronage system.
Further, the huge volume of delegated legislation, particularly statutory instruments, means that MP’s have little hope of even adequately scrutinising let alone controlling delegated legislation (scrutiny committees being able merely to observe not alter statutory instruments). Where delegated legislation involves sub-delegation, the problem of loss of accountability is further compounded such that the reality of our democracy is that much of our law is made by the unelected in private.
Question 3:
3). The courts have no role in law making: they merely decide the outcome of cases. Discuss this statement.
As a statement of fact, this proposal is highly questionable since there is a large body of case law, and of course much of the common law, which speak to the contrary. How many law students have studied Donoghue v Stevenson [1932] HL precisely because it is held out to be an example of courts making law?
As an opinion, this statement represents the somewhat polarised ‘declaratory theory’ which provides that judges should not create or alter the law, but simply ‘discover’ what the law is.
Bentham would clearly have scoffed at this proposition when he expounded (‘Works’, Volume V) in the eighteenth century “it is the judges that make the common law, just as a man makes laws for his dog”, whereas two centuries later Lord Devlin opined “I doubt if judges will now of their own motion contribute much more to the development of the law.” (‘Samples of Lawmaking’ (1962)).
An explanation for such stridently opposing views has three main causes.
The first is the historical development of law making, from being a body of essential legal tenets - the common law - developed case by case and kept fairly constant by the appication of precedent, to a statute dominated system enshrining the principle of separation of powers between executive and judiciary where laws are made by the former and applied by the latter. Lord Diplock summarised this in Dupont v Steel (1981) stating “Parliament makes the laws, the judiciary interpret them.”
As a consequence of this transition, from the mid nineteenth century the focus of courts necessarily evolved (since the law was now prescribed to them) from making to interpreting law. The dates of the above quotations are thus telling as to the reduction of the role of courts in law making over time.
Thus Lord Wilberforce arguably represented the modern position saying “any … new direction must be set by Parliament for the future, not by the courts” (Kleinwort Benson v Lincoln CC [1988] HL).
The second is that there are differing approaches to statutory interpretation, each of which confers varying degrees of discretion on judges as to the extent to which they can make law. This vast middle ground of the debate as to what constitutes making rather than interpreting law is played out daily in the courts but now limits itself to cases where the law neglects to state or fails to state clearly how it should be applied to a given situation. As Lord Denning put it (in Re: Sigsworth) the courts “fill in the gaps”.
While the trend from common to statute law has been the dominant force in altering the role of the courts from making to interpreting law, contrary to this has been an increase in the purposive (rather than literal) methods during the last fifty or so years, in large part a consequence of the adoption of EU law and manifest for example in the European Court of Justice’s (ECJ) modus operandi. In particular, the EU system of national courts applying to the ECJ for preliminary rulings on how to apply law is a meaningful increase in the extent to which courts make rather than merely ‘declare’ the law.
A third factor is that judges are individuals. While they now recognise they are no longer the primary source of law creation, the extent to which they feel empowered to make law within the confines of interpretation reflects the variability of their characters and viewpoints.
By way of conclusion, the current extent of the courts’ role in law making is well summarised the lawmakers themselves.
Lord Mackay in a speech in 1997 considered that “the duty of the judge is to apply the law as he finds it, not to seek to rectify perceived inadequacies by the use of creative interpretation … [but] … where there is a gap in the law … he must decide the best way to proceed and the result may be a decision which is in some way innovative.”
Similarly Lord Reid concluded that “judges make law within narrow confines … [limited to] …developing or creating new law is inevitable to do justice, or to bring law in line with social changes.”
Bibliography
Primary sources:
Open University course W100 Assessment Guide Part 1.
Open University course W100, “Block 1 Rules and rule making”
(particularly Units 3 to 5 inclusive)
Open University course W100, Reader 1
Secondary sources:
Bentham, Jeremy, “Works”, Volume 5.
Bournemouth and Poole College Law Website (particularly the section “Law reform role of judges – declaratory theory”)
Devlin, “Samples of Lawmaking” (1962)
Kent, Sir Harold, ‘In on the Act’ (1979) (quoting Lord Thring, p.24)
Mackay, LC, Times Law Awards ceremony speech, 1997.
Mills, J.S. “Considerations on representative government” (1977)
Muylle, K.J., ‘Improving the effectiveness of parliamentary legislative procedures’ (2003).
Parliamentary Education Unit, #Parliament Explained 4: Making a Law’ (2002)
Reid, “The Law and the Reasonable Man” (1968)
Slapper, G, “The law factories” (2002)
Wordcount:
Question 1: 306
Question 2: 496
Question 3: 698
